Kagan's legal brief defended rap album

WASHINGTON — Solicitor General Elena Kagan is accustomed to dealing with strong-willed colleagues, which could prove useful considering the Supreme Court's membership and its upcoming agenda.

Seventeen cases already are arrayed on the Supreme Court docket for the term that starts next October. If Kagan wins confirmation, she'll join her teammates in confronting controversies from the sale of violent video games to anti-gay protests that disrupt military funerals.

The court's 2010-11 docket eventually will grow to 75 cases or more. The court will be taking on mandatory minimum sentences, childhood vaccine damages, employer retaliation, free speech and more.

"Three hundred million Americans will be affected by this nomination," said Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee.

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The Obama administration sees Kagan's job, in part, as swaying Justice Anthony Kennedy, a frequent swing vote. Nonetheless, it's not necessarily easy to predict where Kagan may end up on any one case.

Certainly, the 50-year-old Kagan has proved that she can cut deals, soothe tensions and handle pressure. During her 2003-09 tenure as the Harvard Law School dean, she oversaw a $180 million budget, a roster of famously big egos and the hiring of 32 professors, some of them notably conservative.

"Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament, her openness to a broad array of viewpoints," President Obama said Monday.

Kagan has a certain kind of paper trail. She's written legal briefs; at one point, in support of the potty-mouthed rap group 2 Live Crew's album "As Nasty As They Wanna Be." She's written memos, including some for the late Justice Thurgood Marshall that she's since distanced herself from.

"You know, I was a 27-year-old pipsqueak and I was clerking for a 90-year-old giant in the law," Kagan told the Senate Judiciary Committee last year.

Though she's never published a book and isn't an especially prolific scholarly writer, Kagan has written several substantive law review articles, delivered numerous speeches and been quoted in myriad news releases. Her answers to a Senate Judiciary Committee questionnaire last year in advance of her confirmation as solicitor general spanned 47 pages.

"I think there will be a very complete picture of her when this process is completed," said Ron Klain, Vice President Joe Biden's chief of staff.

The paper trail doesn't extend to any judicial rulings, however, which is unusual. If confirmed, Kagan would be the first Supreme Court justice since Lewis Powell and William Rehnquist in 1972 to lack judicial experience. Republicans have already made it clear that they'll hammer on this.

"I'm not suggesting anyone has to have been a judge to serve as a justice, although that's a good experiential basis for it," said Sen. Jon Kyl of Arizona, a senior Republican on the Senate Judiciary Committee.

The man Kagan hopes to replace, Justice John Paul Stevens, had served five years as an appellate judge before his 1975 promotion to the Supreme Court. In other ways, too, Kagan won't be a simple one-for-one replacement for Stevens.

Kagan, moreover, would have to recuse herself from cases in which the solicitor general's office has been involved. For instance, she couldn't touch convicted Philadelphia heroin dealer Kevin Abbott's challenge to his mandatory minimum sentence, because her office weighed in at an early stage.

Other hot-button issues that Senate Judiciary Committee members will grill Kagan on, including abortion rights and national security, as yet aren't on the court's 2010 agenda.

One early test would require Kagan to balance free-speech rights against a family's profound pain.

Members of Westboro Baptist Church in Topeka picketed the 2006 funeral of a young Marine who was killed in Iraq, carrying signs such as "You're Going to Hell." A trial judge awarded the slain Marine's father $5 million for emotional distress and invasion of privacy, but the church's members say the First Amendment should protect their actions.

Kagan's track record suggests that she'd bring sympathy for free-speech advocacy to this case.

"My view is that efforts to regulate pornography and hate speech not only will fail but should fail to the extent that they trivialize or subvert this principle" of viewpoint neutrality, Kagan wrote in a 1993 University of Chicago Law Review article.

Accordingly, Kagan once helped represent the National Enquirer in a defamation case. On behalf of the recording industry in 1992, she helped successfully defend 2 Live Crew's "Nasty" album, which included the single "Me So Horny."

"I'm like a dog in heat, a freak without warning," the rappers sang, before graphically elaborating.

A trial judge called the song obscene. The appellate court, after reading arguments from Kagan and others, decided otherwise.

"The work had artistic value," the appellate judges concluded, citing expert testimony, adding that "we reject the argument that simply by listening to this musical work, the judge could determine that it had no serious artistic value."